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REMARKS OF

BENJAMIN R. CIVILETTI

ATTORNEY GENERAL OF THE UNITED STATES

AT THE

ANNUAL DINNER IN HONOR OF THE JUDICIARY

THE JUDICIAL ADMINISTRATION DIVISION

AMERICAN BAR ASSOCIATION

Ilikai Hotel

Honolulu, Hawaii

Monday, August 4, 1980

Many years ago, de Tocqueville observed that scarcely any

governmental problem arises in the United States that is not

resolved, sooner or later, by the courts. If de Tocqueville was

struck by the judicialization of American society 150 or so years

ago, he would be infinitely more impressed today particularly

if he looked at the courts during the last 10 to 15 years.

While explanations for this phenomenon are doubtless complex,

a principal reason seems clear to me: the judiciary is the most

respected and probably the most effective branch of our tripartite

federal government. The courts have earned this well-deserved

respect for a number of reasons.

Judges have not hesitated to make difficult decisions, even

when the outcome has been politically unpopular. Throughout

American history, many of the advances that have been made in

social justice have been spearheaded by the ~urts. Because of

the nature of the judicial process, courts must respond to an issue

directly. In general, they cannot "finesse" the central questions,

the way the legislative and executive sometimes feel it necessary

to do. Moreover, the courts get their work done at far lower cost

and in a much shorter time than either the Executive or the Congress.

For example, even though the jUdicial branch is the only one that

has formal layers of review, the process of decision-making is

more streamlined there than in the other branches. Before any

decision of significance can be reached in Cabinet departments, the

levels of review are often double or even triple those used in

our judicial system.

Yet another reason for the effectiveness of the courts -­

perhaps the most important one -- is that the quality and integrity

of the men and women of the federal judiciary as a whole are, I

think, very high. Despite the often controversial nature of the

work, the decisions of judges are respected and obeyed. I am sure

you can think of additional reasons for what I believe is the

outstanding success story in the history of our federal syatem:

the work of the federal judiciary.

The judges of this country are being called upon to decide an

increasing number of issues that involve more complex, more sensitive,

and more broad-ranging policy decisions than ever before. The actions

of judges touch the lives of individual citizens more frequently and

more profoundly than they have in the past.

Judicial involvement in controversial is\ues has resulted in (wide recognition of great power wielded by federal judges. This

awareness has coincided in recent years with a growing mistrust of

all public officials. Not surprisingly, there has been increasing

insistence that judges answer to the public in a manner that was

not required in the past.

Demands for greater accountability acquire special significance

and special constraints when they are addressed to federal judges.

It has often been said that the Third Branch lacks both the

legislature's pursetring power and the executive's many instruments

of authority. The judiciary, more so than other branches of government,

relies for its effectiveness primarily on the reputation of its

members. If the public is to retain faith in the nation's system

of justice, judges must be -- and must be perceived to be -­

persons of fairness, integrity, and ability. Thus, in the context

;of the judiciary, the appearance of rectitude is as essential to

continued public support as is the reality of competence and

honesty.

But accountability is not the only value that must be

considered. Under the Constitution of the United States, the

independence of judges is guaranteed. The freedom of judges to

interpret and apply the law with neither the fear of retribution

nor the influence of favor is ~ the highest values of our

American system of justice. If our democracy is to function well,

judges must be free to make whatever decision they believe to be

correct in an individual case. They cannot be bound by outside \

constraints.

The story is told that when Judge John Biggs was appointed

to the Third Circuit in the 1930's, his friend H. L. Mencken said

to him, "John, I want you to remember that a judge is a law student

who corrects his own papers." Mencken's comment provides the right

focus for a consideration of judicial independence. Legal decisions

may, of course, be subject to judicial review. But the appellate

process should be the only way a judge is made accountable for the

substance of a legal decision.

There will always be some tension between the values of

judicial independence and judicial accountability. Accountability

carried too far -- for example, in the form of partisan elections

is a clear threat to independence. It could make the law no more

than the political whim of the moment. But lack of accountability,

carried too far, "threatens a backlash by citizens who no longer

·have faith in their judges. By contributing to disrespect for the

law, lack of accountability also could weaken our legal system.

We must recognize that judges are already called to be

accountable in a variety of ways. Some of these ways are clearly

inappropriate. Under existing complaint avenues, litigants who

object to the substance of a decision, or citizens who find fault

with the way a judge has ruled on a particular issue, may attempt

to attack the judge in a forum other than an appellate court. The

challenge may be focused on the judge's habits and abilities or

morals, even though in fact the judge is under attack because of

what he or she decided. These attacks may be made by taking a

complaint to the press, by attempting to invok~ the impeachment

process, or by attempting to use collateral legal proceedings.

There is no way to make a judge impervious to inappropriate

attacks. Threats to judicial independence exist today, as they

have throughout history. I firmly believe that the· establishment

through legislation of formal procedures by which the .judiciary

itself can consider and act upon complaints against jUdges will

provide a shield for the many, many unwarranted complaints that

are raised against judges and will increase public confidence in

the quality of the jUdiciary.

I have approached this matter as I approach all legislative

proposals, with the assumption that Congress should pass no law

unless the need for it is clear. I wish I could say that the

current system provides adequate mechanisms through which complaints

against judges may be resolved, but I do not believe that it does.

Our federal judiciary has a long and honorable history that

is probably unmatched by other elements in public and corporate

life. But when the rare instance of an unfit judge does occur,

there are gaps in the present system that prevent adequate action

from being taken.

The impeachment process is cumbersome and is applicable only

to the most egregious cases. Informal efforts by other judges to

help a colleague overcome a barrier to effective judicial service

may not always produce results.

As you know, all of the circuit councils recently have adopted

procedural rules to govern the receipt and handling of complaints ~

against judges. These rules fill some of the gaps that existed

previously, but they do not fully answer the public's need for a

responsive system.

There is such disparity among the procedural rules that, in

the Justice Department's view, they are likely to produce unexplained

inconsistencies in the way different circuits treat similar types

of complaints. A more substantive weakness of the circuit rules is

that not a single set of them establishes a mechanism that is basically

satisfactory. Many of the rules, for example, are either vague or

completely silent with regard to the definition of a standard by

which to determine whether a judge is unfit, the measures that may

be imposed by a council, or whether a decision or action by a council

is reviewable. A major purpose of a mechanism for handling complaints

against judges is to enhance the prestige and efficacy of the

judiciary as a whole by assuring the public that judges are persons

of integrity and ability. Procedures that are incompletely defined

and that treat judges inconsistently cannot be expected to enhance

public confidence in the judicial system and may even diminish it.

An additional weakness of the circuit rules is that, under

current law, the specific powers of the councils to deal with

instances of judicial unfitness are ill-defined. In discussing the

authority of circuit councils under the relevant statute, the Supreme

Court in Chandler v. Judicial Council wrote that "[l]egislative

clarification of enforcement provisions of this statute • [is]

called for." Congress now has the opportunity to provide this

clarification.

Because the present system lacks appropriate avenues through

which citizens may express their legitimate dissatisfaction, attempts

to rectify the situation have led to sometimes extreme proposals.

Even friends of the courts occasionally consider new arrangements

that could have a negative effect on judges. For example, within

recent years the Senate Judiciary Committee considered a cons

amendment that would have defined the tenure of federal judges by

means of a term of years rather than by the "good behavior" standard

that now applies. I understand that approval of this amendment was

defeated by a very narrow margin. Such a chang~, would have been a

genuine threat to judicial independence.

In my judgment it would be a dangero~s mistake for Congress to

assign to itself or to any other non-judicial authority the

responsibility for hearing complaints against federal judges. The

judges themselves are aware of the need for a system that appears

more responsive to pUblic dissatisfaction. In testimony before a

Senate Subcommittee last year, a representative of the Judicial'

Conference of the United States, in explaining why it is necessary

to establish a procedure supplementary to impeachment, said that

"[e]ven if we assume that only a small percentage of our judges

'misbehave,' with the total number of federal judges escalating

almost geometrically . . . there is no question that some process

is needed." The Conference has supported the establishment of

uniform rules through congressional action that will keep the complaint

mechanism within the judiciary.

Obviously, any legislative proposals in this area must be \

carefully formulated to insure that judges retain total freedom in

their decision-making. Great progress has been made in recent months

toward a consensus that will foster the complementary values that

are so important to both the public and the judges independence

and accountability. As you know, last October the Senate passed

s. 1873, the Judicial Tenure and Disability Act. In the House, the

JUdiciary Subcommittee on Courts, Civil Liberties, and the

Administration of Justice, chaired by Congressman Kastenmeier, has

unanimously approved and reported a bill that is expected to receive

the attention of the full Judiciary Committee'and possibly the whole

House before the end of the 96th Congress.

The Department of Justice has testified that it could support

s. 1873 if certain modifications were made; we essentially support

the draft bill in the House. These proposals offer a more limited

approach than that offered by bills the Department has supported

in previous Congresses, but they overcome various objections to

those bills. I would like to offer some suggestions concerning

ways the current proposals can be reconciled with each other and

improved to provide truly effective legislation.

Under both bills the proposed mechanism for dealing with

allegations of unfitness against judges is located in the judicial

branch, and complaints are adjudicated first by the members of

the circuit councils. The bills also establish explicit sanctions

that may be imposed on unfit judges. While the bills in these ways

are similar to earlier legislative proposals, certain significant

features are markedly different.

Both bills rely on the circuit councils to conduct the basic

investigation of a serious complaint; they do not create a national

commission to perform this function. The proposed mechanism therefore

is less ponderous than that created in earlier bills. Quite

significantly, the bills also have eliminated the power to remove

judges. Once the removal sanction is no longer a point of controversy,

the gulf between a process that the public would find effective and

a process the judiciary could find acceptable is substantially

narrowed.

There are, of course, some discrepancies between the two

proposals. The primary differences concern whe~e an appeal may be

taken, and the extent to which the complainant retains standing to

press a complaint throughout the process. It seems to me that ·these

differences can be reconciled through relatively modest changes

in the bills.

Under the Senate bill, a circuit council's action may be

appealed to a new Court on Judicial Conduct and Disability composed

of five federal judges. Under the House proposals, on the other

hand, review of a circuit council's action would be in the JUdicial

Conference.

If the House bill is interpreted to require review by the full

25-member Judicial Conference, appeal from a circuit council will

be cumbersome and expensive. The recent ~ banc experience of the

Fifth Circuit has demonstrated that a tribunal of that size is

wholly unsatisfactory in practice. We would recommend the inclusion

in the legislation of a provision specifically authorizing the

Conference to act on complaints through a special committee of the

Conference. ~

Either a special court or a committee of the JUdicial Conference

would provide a practical and accessible means of review for appropriate

cases. We would hope that enactment of judicial unfitness legislation

would not be deterred because of differences between the bills on

this matter.

Another point on which the bills differ is whether a grievance

can be pressed beyond the council level, an eventuality that is

permitted in the Senate bill. Clearly, if a procedure for dealing

with complaints against jUdges is to win the faith of the public,

it must assure due consideration by a process that is wholly fair

in appearance as well as in fact. This does not require converting

the proceedings into adversary contests or allowing complainants

to appeal every losing decision. The jUdges need protection from

appeals that are frivolous and merely designed to harass.

A way to secure both credibility for the process and justice

for the judges would be to allow request for further review to be

made by an individual who could be trusted by all parties, for

example, a senior judge from another circuit. This person could

act throughout the proceeding to aid the investigation of the facts

and, in an appropriate case and under an appropriate standard, could

intimate the need for an appeal to the reviewing body. A procedure

such as this would go a long way toward assuring a process that

did not appear one-sided. I am informed that, at the markup of the

House bill on July 31, it was said that the report accompanying the

bill will suggest that in appropriate cases, the Judicial Council

may appoint a senior judge for the purpose I have urged. I prefer

writing that idea into the. statute.

I am not suggesting -- and I want this point to be very clear --(fthe creation of an investigator who is, in any s~nse, the stereotypical

"special p~osecutor." The role of the investigator would not be to

act as a relentless advocate in an adversarial dispute. Rather, it

would be simply to safeguard the integrity of the system by assuring

a balanced presentation of the case.

There is one other modification in the bills before Congress

that would, I believe, vastly improve the effectiveness and fairness

of any legislation. Neither the bill that has passed the Senate

nor the one that is being considered by the House defines clearly

and comprehensively the circumstances that consti~ute judicial

unfitness. Both bills define misconduct as action prejudicial to

the effective and. expeditious administration of the business of

the courts.

This formulation of a standard for unfitness is misleading.

It suggests that the central concern of the process is solely to

assure more productive court management and is indifferent to

conduct -- however despotic or even dishonest -- that does not

affect the filing and movement of cases or other aspects of the

business of the courts. At the same time, though, the language is

so amorphous it could be stretched to apply to conditions that ought

not be censurable, as when a judge's docket falls into arrears

because he 'is handling an unusually complex or difficult case.

The standard for unfitness should apply clearly to those

types of problems that "fall through the cracks" of current processes

-- conduct such as actions that are criminal but not impeachable,

ethical lapses, and disabilities such as chronic illness, alcoholism,.\

and senility. A number of formulations of a standard of unfitness

would more clearly cover these problems. For example, one'acceptable

definition of unfitness would be conduct that is inconsistent with

the effective and expeditious administration of the business of

the courts, or conduct that violates the Code of JUdicial Conduct

or the laws of any state or of the United States, or mental or

physical disability that renders a judge unable to discharge all

the duties of office. We believe that a definition along these

lines should be adopted by the Congress.

On a question as complex as the one I have discussed today,

everyone has particular tastes and emphases. I will not extend my

remarks by mentioning all of the provisions that might ideally be

incorporated in legislation such as this. I simply want to

emphasize that the Department of Justice strongly supports the

"enactment of effective legislation to deal with judicial unfitness.

A procedure assuring that legitimate complaints against judges

will be addressed and authentic problems resolved, and that at

the same time clears the name of a judge who has been unjustly

attacked, will enhance the judiciary's standing with the public

by showing that the judges who have the law in their charge are

themselves subject to the law and not above or beyond it when their

fitness is in question.

All sides have come a long way in recent months toward

crafting legislation that takes duly into account the values of

judicial independence and judicial accountabilifY. The disagreement

now is basically over the specific procedures that will prove more

effective. With a continuing spirit of cooperation a solution to

that problem will not long elude us.